A resource for updates to Currie & Rikhof, International & Transnational Criminal Law, 2d ed. (Toronto: Irwin, 2013), and a forum to discuss developments in the field.

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September 2015

01 September 2015

As is being widely reported in the Canadian press, the RCMP have laid torture charges against Col. George Salloum, a Syrian intelligence officer. The charges stem from the infamous extraordinary rendition and torture of Syrian-Canadian Maher Arar, which gave rise to a judicial inquiry and a payment of restitution to Arar here in Canada, but until now no criminal consequences.

1) the next step is to find Salloum. A Canada-wide warrant has been issued, and it has been suggested that an INTERPOL red notice has been issued. I have my own doubts about how cooperative the Syrian government will be.

2) investigations in the Arar case should continue, possibly, in Amnesty's words, "leading to charges against other Syrian, US or even Canadian officials if appropriate and feasible. There has yet to be any accountability in the United States for subjecting Maher to rendition."

3) other Canadians have been tortured abroad, and charges should be pursued in their cases, as well.

4) those cases most similar to Arar's -- those of Almalki, Elmatti and Nureddin -- should be pursued with particular vigour.

5) these charges affirm that torture is a crime, not explainable (as it has been in the past) as an unpleasant government practice.

6) these charges help to lift the secrecy which often surrounds torturers, given that under the definition of torture in the UN Convention Against Torture (as implemented into Canada's Criminal Code, see below), torturers are by definition government officials. It is most difficult to shed light on murky deeds by government actors, which is why the pursuit of criminal remedies is so pressing.

From a technical point of view, Salloum has undoubtedly been charged under s. 269.1 of the Criminal Code, under which torture is an indictable offence punishable by imprisonment not exceeding 14 years. This alleged act of torture took place outside Canada, which means Canada is exerting extraterritorial jurisdiction over the act. While I have seen no official commentary, presumably the jurisdictional link being utilized is that in s. 7(3.7)(d) of the Code, which provides for jurisdiction over the act of torture where the victim is a Canadian national. This, too, is consistent with the CAT. Under international law universal jurisdiction is available for torture, but Canada uses only the more limited, "custodial" form of universal jurisdiction, where the alleged torturer can only be charged if he/she appears in Canada. Thus, the RCMP must be using the "passive personality" or "passive nationality" jurisdiction in s. 7(3.7)(e).

Of course, all of this is simply an exertion of prescriptive jurisdiction and the beginnings (through the charge) of exerting enforcement jurisdiction. In order for Salloum to be prosecuted he will have to be extradited to Canada from wherever he is, if he is even still alive or if the Syrian government does not seek to shield him from these charges.

There is a long row yet to hoe in this case. Yet the truly interesting aspect of it is not the law underpinning the charges, which stems from a treaty that is over 30 years old and Criminal Code provisions of similar vintage. Rather, it is the fact that the charge has been laid at all, as charging a foreign government official with any crime, let alone torture, will be politically controversial and this kind of controversy is in fact what has held back the law of torture from more robust development. That is truly an accomplishment, a beacon of light to the world, and the government Canada is to be commended on taking this very progressive step. This is a case which many, including me, will be following with interest.